Dismissed

Tara Singh v. Kamla Devi

Himachal Pradesh HC2 Mar 2023RSA/519/2008

Case brief

AI extract

What is this about?

Regular Second Appeal dismissing specific performance suit. Bench held impugned concurrent findings of two lower courts regarding forgery of sale deed to be binding. No perversity found. Appeal dismissed pursuant to Laxmidevamma and Parminder Singh. Record remitted to lower court.

What did the court decide?

Impugned judgment and decree affirmed; appeal dismissed. Record remitted to lower court.

Tara Singh Vs Kamla Devi — Contract and Commercial Disputes | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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RSA No. 519 of 2008 Decided on: March 2, 2023

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____________________ Tara Singh and others Smt. Kamla Devi and oth	____________________________________ ……...Appellants Versus ers …Respondents
____________________ Coram Hon’ble Mr. Justice San Whether approved for r	____________________________________ deep Sharma, Judge. eporting¹? Yes.
____________________ For the appellants:	____________________________________ Mr. Tara Singh Chauhan, Advocate.
For the respondents:	Mr. Ajay Sharma, Senior Advocate with Mr. Atharv Sharma, Advocate.
____________________ Sandeep Sharma, J.	____________________________________

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Instant Regular Second Appeal filed under Section 100 CPC takes exception to judgment and decree dated 31.7.2008 passed by learned Additional District Judge Una, in Civil Appeal No. 36 of 2005 affirming judgment and decree dated 19.1.2005 passed by Civil Judge (Junior Division) Court No.II Una, Himachal Pradesh in Civil Suit No. 112 of 1989, whereby suit for specific performance of contract with consequential relief of permanent injunction, having been filed by appellants/plaintiffs (hereinafter, ‘plaintiffs’) came to be dismissed.

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2. For having bird’s eye view of the matter, facts necessary for the adjudication of the case are that predecessor-in-interest of the plaintiffs, namely Attar Chand, filed a suit for specific performance of contract for registration of sale deed and transfer of possession,

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Whether reporters of the Local papers are allowed to see the judgment? .

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whereby it was agreed to sell land measuring 27 Kanal comprising of Khasra No. 1639 (old 174/6 min.), 1641 (old 174/6 min.) 1644 (old 174/5 and 175/1/1 min.), 1645 (old 175/1/1 min.) bearing Kheat No. 27 (ld Nno. 152 min.) Khatauni No. 28 (ld No. 156) as reflected in copy of Khatauni prepared as per latest Settlement and Jamabandi for the years 1981-82 situate in Village Basal, Hadbast No. 194, Tehsil and District Una, Himachal Pradesh (hereinafter, ‘suit land) with consequential relief of permanent prohibitory injunction restraining the defendants from interfering in the possession of the predecessor-ininterest of the plaintiffs and from alienating the suit land during the pendency of the suit. Plaintiffs averred in the suit that predecessor-ininterest of defendants Ram Paul, during his life time entered into agreement dated 26.8.1983, for consideration of Rs.7,000/-, which was received by him vide agreement to sell dated 10.11.1979 and 26.8.1983 and then possession of the suit land was given to the predecessor-in-interest of plaintiff. Plaintiff claimed that the possession by the predecessor-in-interest of the defendants was also given to their predecessor-in-interest and since then they are in possession. Plaintiffs claimed that as per agreement dated 26.8.1983 sale deed was to be executed within three years but despite having shown willingness by their predecessor-in-interest and by them, predecessorin-interest of defendants and defendants themselves are not coming forward to execute the sale deed. Plaintiffs averred that before sale

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deed could be executed, their predecessor-in-interest Ram Paul passed away on 30.11.1986 and thereafter mutation of suit land was entered in the name of Smt. Kamla Devi, widow of Ram Paul vide No. 6149 dated 8.5.1987. Plaintiffs further alleged that they had been approaching defendants for execution and registration of sale deed dated. 26.8.19883 but on one pretext or other, defendants are not coming forward to execute the sale deed. Plaintiff claimed that defendants refused to get the sale deed executed and threatened to interfere in their possession and alienate the suit land. Plaintiffs claimed that though they served legal notice dated 7.4.1989 upon defendants showing their willingness to perform their part of contract and requested them to give date, time and place but defendants neither replied nor came forward to get the sale deed executed.

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3. Claim put forth by the plaintiff came to be resisted by defendants by filing separate written statements.

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4. Defendant No.1 apart from taking preliminary objection with regard to limitation, denied execution of agreement to sell, if any, by his predecessor-in-interest. He also stated that though there was no agreement to sell executed by his predecessor-in-interest but if it was found to have been executed, same is result of fraud and mis representation having no adverse effect upon right, title and interest of the defendants.

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5. Defendants Nos. 2 to 8 specifically claimed that the suit is barred by the principle of res judicata . On merit, they claimed that their father Ram Paul never executed agreement to sell and same was false, forged and fabricated. They categorically stated that there was no question of getting sale deed executed on the basis of forged agreement to sell. Aforesaid defendants also claimed in the written statement that even if the agreement to sell is proved even then suit property being Hindu coparcenary property in the hands of Ram Paul Karta of joint Hindu family could not be alienated without there being legal necessity. They claimed that their predecessor-in-interest Ram Paul had no right to enter into agreement to sell without legal necessity as such, he was not competent to enter into agreement to sell.

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6. On the basis of pleadings adduced on record by respective

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parties, learned trial Court framed following issues:

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“1. Whether Sh. Ram Paul predecessor of defendants agreed to sell the suit land for a consideration of Rs.7000/- as alleged? OPP

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If issue No.1 is proved in affirmative whether the possession of the suit land was delivered to the plaintiff as alleged? OPP

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Whether the plaintiff was and is still ready to perform his part of contract as alleged? OPP

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If issue No. 1, 2 an d3 are proved in affirmative, whether the plaintiff is entitled for the relief of specific performance as alleged? OPP

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4A Whether the agreement dated 26.8.83 and 10.11.79 are forged and fabricated? OPD2 to 8.

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Whether agreement dated 26.8.03 and 10.11.79 are result of fraud and misrepresentation as alleged? OPD.

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Whether the plaintiffs have no cause of action as alleged? OPD 1.

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Whether the suit is not within time as alleged? OPD 1

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Whether the suit property is coparcenary property and thus the deceased Ram Paul had no right to execute the agreement for sale as alleged? OPD 2 to 8.

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8-A Whether the suit of the plaintiff is barred by the principle of res-judicata? OPD.

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7. Subsequently, on the basis of pleadings and evidence led on record by respective parties, learned trial Court below, while dismissing the suit, decided issue No. 1 in favour of plaintiff but while deciding issue No. 4A, held agreement to sell dated 26.6.1983 and 10.11.1979 to be forged and fabricated.

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8. Being aggrieved and dissatisfied with the findings returned on issue No. 4A, plaintiffs filed an appeal before learned Additional District Judge, Una, which came to be dismissed vide judgment and decree 31.7.2008. In the aforesaid background, plaintiffs approached this court in the instant proceedings, praying therein to decree the suit, after setting aside findings returned by learned trial Court qua issue No.4A. It is not in dispute that no appeal was filed by defendants qua findings returned by learned trial Court qua issue No.1, whereby it was

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held that Ram Paul agreed to sell suit land for consideration of Rs.7,000/- to the defendants as such, same has attained finality.

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9. Appeal at hand was admitted vide order dated 19.11.2008, on following substantial questions of law:

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“1. Whether the Judgment and decrees are not result of misreading of oral and documentary evidence on record, especially ExPB and evidence of Sh Swaran Chand PW-2 attesting Witness PW4 son of deed writer PW Gurmail Singh attesting witnesses and Sh Shanti Lal document writer?

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Whether the court was right in holding that the plaintiff has concealed the fact of filing of earlier suit in view of Plaint Ex PW6/A proved on record by the plaintiff.”

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10. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned by learned Additional District Judge while passing judgment and decree 31.7.2008 upholding judgment and decree dated 19.1.2005 passed by learned Civil Judge (Junior Division), Court No. II, Una, this court is not persuaded to agree with the submission of learned counsel for the plaintiffs that the learned courts below failed to appreciate the evidence in its right perspective, rather, this court finds that both the learned courts below have dealt with each aspect of the matter meticulously and there is no misreading and misinterpretation of the evidence, be it ocular or documentary.

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11. No doubt finding on issue No.1,,”Whether Ram Paul agreed to sell suit land for Rs7,000 in favour of the plaintiff?” has attained finality, but since learned trial Court, while deciding issue No.4A held the

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agreement to sell dated 26.8.1983 and 10.11.1979 to be forged and fabricated, no advantage, if any, can be taken by the plaintiff on the basis of findings returned by learned trial Court qua issue No.1.

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12. Mr. Tara Singh Chauhan, learned counsel for the plaintiffs, vehemently argued that bare perusal of pleadings of defendants nowhere suggests that plea of agreement to sell 26.8.1983 and 10.11.1979 being forged was ever taken by defendants as such, evidence if any, led qua this issue could not be taken into consideration by both the learned courts below, while deciding issue of execution of agreements, as taken note above, is concerned.

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13. Though, having taken note of pleadings adduced on record by the defendants, this court finds force in the submission of Mr. Tara Singh Chauhan, learned counsel for the plaintiffs that no specific plea, if any, with regard to alteration in the agreements was taken but if pleadings are read in their entirety, defendants had taken specific plea with regard to forgery. Defendants categorically stated that execution of agreement to sell, if any, is result of fraud and misrepresentation. Defendants Nos.2 to 8, besides taking objection of forgery, also stated in the written statement that property being Hindu coparcenary property in the hands of their predecessor-in-interest Ram Paul, could not be altered without there being any legal necessity, as such, Ram Paul (deceased) was not competent to enter into such agreement.

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14. Interestingly, though aforesaid plea of the defendants raised in written statement never came to be refuted by the plaintiffs but yet learned trial Court, taking note of document Exhibit PX, mutation register for the years 1972-73 returned finding that suit property came to Ram Paul by way of will as such, same was not Hindu coparcenary property in the hands of deceased. Moreover, PW-1 in rebuttal evidence deposed that father of Ram Paul had told that he had bequeathed the suit property to Ram Paul by way of will.

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15. Mr. Tara Singh Chauhan, learned counsel for the plaintiffs argued that material alterations in Exhibit PB were in the knowledge of defendants but yet they failed to raise any plea with regard to same. He further submitted that learned courts below without framing issue with regard to material alterations, proceeded to decide the issue, as a result of which, great prejudice was caused to the plaintiffs. However, this court is not persuaded to agree with Mr.Tara Singh Chauhan, Advocate because, specific issue with respect to fraud and misrepresentation in execution of agreements to sell dated 26.8.1983 and 10.11.1979 was duly framed by learned trial Court on the basis of the pleadings adduced by parties. Once the defendant had taken plea with regard to fraud and mis-representation, while preparing agreements dated 26.8.1983 and 10.11.1979 and learned courts below, after having perused document Exhibit PB, arrived at a definite conclusion that word ‘ Teen’ was materially altered, no prejudice could

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be said to have been caused to the plaintiffs due to non-framing of issue with regard to material alterations. Since defendants took specific stand that alleged agreements were false and fabricated, it cannot be said that they had not pleaded forgery. Moreover question of alteration in Exhibit PB was not required to be pleaded specifically, when word’ ‘ forgery’ was specifically used in the written statement, while terming agreements in question to be forged and fabricated. Word ‘forgery’ would otherwise include within its ambit, tampering, alterations, subtractions and substitution made in the document.

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16. Having perused Ex. PB, this Court is persuaded to agree with Mr. Ajay Sharma, learned senior counsel for the defendants that bare perusal of Exhibit PB clearly suggests that the same was forged and few words were added subsequently. Alteration in any form, whether by eraser or interlineations would come within broad parameters of ‘forgery’ as they primarily relate to document alone. Since document was very much in the knowledge and custody of plaintiffs, who subsequently raised their claim on the basis of same, they are /were required to be explain tampering/alteration in the document. Since Exhibit. PB was never in the possession of the defendants, it was not incumbent upon them to plead alteration specifically. Once plea of forgery was raised in the written statement, onus was upon plaintiffs to explain the same.

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17. Apart from this, this court finds that agreement entered by predecessor-in-interest of the plaintiffs with Ram Paul, was never laid challenge during the life time of the predecessor-in-interest of the plaintiffs. Earlier suit filed by the plaintiff during life time of Ram Paul was dismissed for want of affixation of proper court fee.

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18. Moreover, this court after perusing Exhibit. PB, finds no illegality in the judgment and decree passed by learned trial Court, with regard to material alterations in Exhibit PB. Alteration in Exhibit. PB is ex facie visible to a naked eye. Aforesaid alteration, if considered to be genuine, material prejudice would be caused to the defendants as in that eventuality, it would enlarge time for filing the suit for specific performance.

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19. Though, in the case at hand, plaintiffs claimed themselves to be in possession of the suit land pursuant to agreement to sell dated 26.8.1983 and 10.11.1979 (Exhibits. PA and PB), but bare perusal of same nowhere indicates recital, if any, with regard to possession, if any, handed over to the plaintiff at the time of execution of agreement to sell. Though plaintiffs with a view to prove their claim with regard to possession, placed heavy reliance upon Exhibit. PW-3/A, Rapat Rojnamcha dated 8/9.4.1987 but it is not in dispute that the entry made in the revenue record on the basis of Rapat Rojnamcha was subsequently rectified by Settlement Collector on 16.1.1987 and in pursuance to same, corrections were effected in the revenue record.

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20. Leaving everything aside, this court finds that the suit ought to have been filed by the predecessor-in-interest of the plaintiffs within three years from the date of execution of the agreement dated 26.8.1983 i.e. 26.8.1986 but record reveals that till the expiration of three years from 26.8.1983, the plaintiffs or their predecessor-ininterest made no effort for enforcement of the agreement to sell, rather, the suit was filed after the death of predecessor-in-interest of the defendants, Ram Paul.

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21. In view of detailed discussion made herein above, this court finds no misreading and mis-interpretation of the documents led on record. Though, in the case at hand, plaintiff while filing suit, specifically mentioned with regard to filing of earlier suit Ex PW6/A but since same was dismissed for want of affixation of proper court fee, no prejudice, if any, can be said to have been caused to the plaintiffs, on account of findings returned by court below that plaintiff concealed the factum of filing of earlier suit.

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22. Substantial questions of law decided accordingly.

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23. Now, it would be appropriate to deal with the specific objection raised by the learned counsel representing the defendant with regard to maintainability and jurisdiction of this Court, while examining concurrent findings of law and facts returned by both the Courts below. Learned counsel for the respondents, invited the attention of this Court to the judgment passed by Hon’ble Apex Court in

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Laxmidevamma and Others vs. Ranganath and Others , (2015)4

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SCC 264, wherein the Hon’ble Supreme Court has held:

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“16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs’ right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.” (p.269)

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24. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Apex Court and true it is that in normal circumstances High Court, while exercising powers under Section 100 CPC, is restrained from re-appreciating the evidence available on record.

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25. The Hon'ble Apex Court in Parminder Singh versus Gurpreet Singh, Civil Appeal No. 3612 of 2009, decided on 25.7.2017, has held as under:

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“14) In our considered opinion, the findings recorded by the three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal.”

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26. It is quite apparent from the aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned Courts below can not be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by learned Courts below, rather same are based upon correct appreciation of evidence as such, deserve to be upheld.

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27. The appeal stands dismissed in the afore terms, alongwith all pending applications. Interim directions, if any stand vacated. Record of learned court below be sent back forthwith.

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(Sandeep Sharma) Judge

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March 2, 2023 (Vikrant)

Tara Singh v. Kamla Devi

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Tara Singh v. Kamla Devi

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